[The Supreme Court] refused to consider whether a person could be on death row for so long that executing him could constitute cruel and unusual punishment. Convicted killer Charles Kenneth Foster argued that executing him after 27 years on Florida's death row would violate the Eighth Amendment. ... Breyer dissented from [the] decision not to get involved, maintaining that "it is fairly asked" whether executing a prisoner who had spent so long on death row was unconstitutional.

But Justice Clarence Thomas said the court was right not to get involved. "Petitioner could long ago have ended his 'anxieties and uncertainties' by submitting to what the people of Florida have deemed him to deserve: execution," Thomas wrote.